handbook for writing licensing rules for human...

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HANDBOOK FORWRITINGLICENSING RULESFOR HUMANSERVICESPROGRAMS

David Ditmar Jake Terpstra

To order additional copies contact:

ClearinghouseThe National Child Welfare Resource Center for Oranizational ImprovementEdmund S. Muskie School of Public Service400 Congress StreetP.O. Box 15010Portland, Maine 04112

(207) 780-58131-800-HELP KIDFax: (207) 780-5817E-mail: [email protected]

Stock No. B050170

© 1998 Edmund S. Muskie School of Public Service,University of Southern Maine

Handbook for Writing Licensing Rules for Human Services Programs 1

Licensing is a legally instituted process of state intervention inthe affairs of those who would provide a designated service.The intervention is carried out through the use of specificcriteria, namely licensing rules used to assess the services.Thus the licensing rules become tools of those who carry out

the licensing function. Persons who license services for children and vul-nerable adults have been called guardians of the rights of children, adultsand their families. In a more general sense it can be said that well writtenlicensing rules applied by skilled licensing staff are the guardian of therights of children, vulnerable adults, and their families.

Generally licensing serves to protect persons whose lives are controlledby persons other than their families and who are not in a position to pro-tect themselves.

Licensing rules, essential to a state licensing program, are the yardstickby which licensed services are measured and held accountable. Once pro-mulgated, rules usually remain in effect for several years, and even whenthey are revised, the existing rules generally serve as a basis for the new setof rules. Given these and other factors, rules have an impact on a largenumber of people over a long period of time and therefore must be devel-oped using the utmost care, planning and testing.

Terms other than “rules” are used in some states. These terms includeregulations, requirements and standards. The term “rules” is used herebecause it has broad use, and rules are in fact state administrative rules.

Licensing rules are mandates and prohibitions, which have the force oflaw to the person or organization seeking or holding a license. The rulesare based on a state licensing law, and must be consistent with the law.Rules, when promulgated are part of the administrative rules of the state,forming the “floor” below which a regulated service may not legally oper-ate. Rules are designed to protect children and adults from hazards and tomandate services at a basic level of quality.

This handbook is intended as an aid in:

1. outlining a process for developing rules

2. developing a format for rules

3. understanding the context of rules

4. defining appropriate content of rules

Introduction

2 Handbook for Writing Licensing Rules for Human Services Programs

Licensing Law

Licensing

Overview Licensing is a process the state uses to protect persons who are in cir-cumstances where they are vulnerable, and sometimes helpless. This in-cludes children when they do not receive care and protection normallyprovided by parents. Services involved in this area are provided by childplacing agencies, child care institutions, day care centers, family fosterhomes and family day care homes. Newly developing services such as daytreatment, crisis nurseries and independent living also may be licensed.Services may also include those for adults who because of age or otherfactors cannot care for themselves and receive care apart from their fami-lies. The licensing of human services programs is the state’s authorizationto certain individuals and organizations to provide specified services tochildren and adults, but only if the services meet certain criteria. Licensingcan be viewed as a quality control process at a rather basic level.

Licensing and licensing rules are based upon values and philosophiesas well as on objective information about the effects of certain conditions.The values permeate all aspects of licensing, even though they generallyare not articulated, except perhaps briefly in a licensing law preamble or ina foreword statement to the licensing rules. Some states have included a“philosophy statement” in the licensing rules booklet to show the valuesreflected in their state’s rules. Although such statements are not enforce-able per se they can be helpful in that they provide a frame of reference forlicensing rules.

The legislative branch of state government, through the passage of alaw, establishes the legal base for an agency of the administrative branchof state government to carry out the licensing of specified activities. Allactivities of governmental agencies are mandated and governed by statelaws. This includes licensing activities. The licensing law specifies the ser-vices to be regulated, designates the responsibility to a particular stateagency, delegates rule making authority to that agency, establishes the pa-rameters of the rules and specifies other factors such as conditions, types,and length of licenses, as well as penalties and appeal rights.

Although there is considerable variation among states in terms of whatcontent is included in the licensing law, there are some general common-alities. The licensing law contains the mandates or “marching orders” tothe agency which carries out licensing, and thereby to the licensing staff.


PhilosophyStatement

Licensing Rules

The licensing law does not normally include requirements for licensure,e.g., specific staff ratios, but does authorize the licensing agency to pro-mulgate rules on staffing ratios. The law does not spell out licensing poli-cies or procedures such as the frequency of monitoring visits, other thanperhaps minimums. (See Appendix I for a list of areas generally covered ina human services licensing law.)

Applicants and licensees should be able to look to the licensing rules tolearn all the specifics with which they must comply to be eligible for alicense. They do not look to the licensing law for this. Where an applicantor licensee believes that licensing is being carried out inappropriately, how-ever, he or she should be able to refer to the licensing law to determinewhether licensing staff are in fact implementing licensing in accordancewith the law. The applicant or licensee also may look to the law to learnappeal rights to contest a licensing action. (In good practice the licenseeshould be informed of the appeal process whenever the licensing agency isrecommending a licensing action which adversely effects the licensee.)(Note: A model state licensing law for child welfare services was devel-oped by The Child Welfare League of America and is available from Vir-ginia Commonwealth University School of Social Work.)

Licensing rules are based on state law; they are regulations that are de-veloped and promulgated by the state administrative agency responsiblefor carrying out the licensing law. The types of services for which statelegislatures delegate rule making and enforcement responsibility to a par-ticular state agency are generally in keeping with the mission of that stateagency. For example health departments usually license health services andsocial services agencies regulate social services.

Licensing rules should contain all the specifics, i.e., mandates and pro-hibitions that an applicant or licensee needs to know to be eligible for alicense. Specific requirements for licensure should not be contained any-where else, such as the licensing law; as having more than one source forlicense requirements increases the possibility of confusion and error.

Similarly, clarity of rules and responsibility also is greater if the licens-ing rules contain only requirements for licensure. Mandates for the licens-ing agency operation and for licensing staff should be in the licensing lawand in licensing policies. Licensing rules should contain only directives topersons who seek or hold licenses.

Even though the licensing law and the licensing rules are not statementsof values, and do not explain why the directives are given, they are never-theless based upon values. Each person involved in rule writing bringsbasic assumptions and values which the rules reflect to some degree. Thissometimes creates a dilemma for the rule writers, the persons who enforcethe rules and those regulated by the rules. When licensing staff and licens-ees work with the rules over a period of time, they sense that there is an


Policies andProcedures

underlying value system. For persons who first encounter the rules, how-ever, this value base may be less obvious and the rules may seem to bebasically red tape. The “what” may be clear but not the “why.”

Most people are able to work more effectively if they understand thereason something is to be done a particular way. Many states handle thisby including a section in the rules such as a “Statement of Philosophy” inthe front of the booklet of licensing rules. Such statements are not part ofthe rules and do not go through the promulgation process. However, likerules they should be brief succinct statements which clarify why the rulesare written, as well as what the objectives of the rules are. (See Appendix IIfor a sample based upon one state’s statement of philosophy.)

While the law is the base and sets the parameters of licensing, policesand procedures are also needed to carry out the law. They are administra-tive directives specifying the way licensing activities are to be carried out.The licensing policies are usually contained in a licensing operationsmanual. These policies are not requirements for applicants and licenseesbut are generally binding on the licensing staff. The policies are one of thetools the licensing agency uses to provide fair and consistent treatment ofapplicants and licensees. While these policies are not requirements appli-cants and licensees must meet, they indirectly affect applicants and licens-ees because the policies direct the way licensing staff carry out their duties.

Many states share their policies and procedures manuals with licenseesas information, to help them understand the licensing process. It is recom-mended that policies and procedures not be included in the same bookletas the rules, to reduce the possibility that licensees interpret any of thepolicy content as requirements they must meet.


Identify Servicesto Be Regulatedand What RuleDevelopment orRevision IsNeeded

Coordinator

Steps in Rule Promulgation Process

Staff specialization in the rule writing process is very helpful. While afull time position is not feasible in most states, assignment of primaryresponsibility for rule writing as part of the duties of a particular staffposition should be sought. Promulgating licensing rules is a dynamic andexacting process which takes considerable skill as well as a strong knowl-edge of both licensing and the program(s) the rules will regulate. Becausethe person who has responsibility for rule writing must have a great dealof familiarity with the regulated services, the licensing process and the rulepromulgation process, it is suggested that this responsibility be assignedto a person in that area of licensing for which the rules are being writtenand who is proportionally relieved of other responsibilities. In most in-stances the person best able to serve as coordinator is the person who ishead of the part of the agency responsible for enforcing the rules. Forexample if the state agency has licensing units for day care services, childwelfare services and adult services, the directors of each of those units wouldserve as the coordinator for each set of rules written for their area of licens-ing.

A preliminary step in the rule writing process is deciding which areas ofservice will be regulated under the set of rules to be developed or revised.The parameters may be already established by the licensing law or thelicensing law may be written in a way that a description of services to beregulated by a set of rules allows some latitude. The first step in the pro-cess of developing or revising rules should begin with a careful analysis ofwhether new or revised rules are needed. Factors to consider may include:

1. A new licensing law or amendment requires the promulgationof rules.

2. The licensing law requires the rules be reviewed and revisedperiodically.

3. The current rules do not provide adequate protection.

4. The regulated services have changed since the rules were lastrevised.

5. New forms of services have emerged, requiring new rules toprovide appropriate protection.

6. Practical problems have been identified in applying or enforc-ing the existing rules.


7. Numerous waivers or variances related to particular rules havebeen granted indicating they are not necessary to provide pro-tection or need to be changed.

8. There is political pressure to change the existing rules. (Politi-cal pressure may come from a number of sources and be moti-vated by a variety of things. It may originate from providers forvalid reasons.)

Some state licensing laws require that rules be reviewed periodically,i.e., every 3 or 5 years. Whether or not the licensing law requires it, peri-odic review is a sound practice. In such reviews, input from a cross-sectionof interested parties should be obtained. The recommendation may be:

1. The rules should not be revised.

2. A partial revision is needed, e.g., only specific areas of the rulesbe revised.

3. A major revision is needed.

The process of deciding the extent of the revision needed, based oninput from interested parties, is generally preferable to undertaking a revi-sion simply because a certain amount of time has passed since the lastrevision.

Determining the reason for developing or revising rules at a particulartime will provide a basis for understanding what areas the new rules willlikely address. This information in turn needs to be compared with theparameters specified by the licensing law for the scope rules may encom-pass. Where there is anticipated need for a rule or rules which exceed thescope of the licensing law it will be necessary either to amend the law orrescind the law and enact a new licensing law.

The process of determining what area(s) will be governed by the rules tobe developed can be complex and requires careful thought and planning.For example, the licensing law governing day care licensing may includecare for children who are ill, school age, “latchkey children,” night timecare as well as other types of day care. Each of the types of care may beprovided in private family homes or in child care centers including crisisnurseries. The question of whether such categories of day care will be in-cluded within one set of rules for child care centers and another set of rulesfor family homes needs to be resolved at the onset.

As services become more complex and varied, the need for clarity as towhich services will be governed by a particular set of rules becomes in-creasingly more significant. Generally, a certain number of program typescan be licensed using one set of rules when that set of rules is composed ofseparate modules or sections. Such a set of rules would begin with corerules which apply to all licensees, and have modules that address compo-nents of particular types of programs. Using this approach, virtually thefull range of residential child care facilities such as small agency staffedgroup homes, large facilities, secure facilities, maternity homes, drug treat-ment, short term emergency care facilities, etc. can be regulated under oneset of rules, provided that set of rules addresses the unique aspects of vari-ous types of care in separate modules.


Develop WorkPlan

The structure of a set of rules governing the above type of residentialchild care programs could include:

1. A general provisions or core section which includes the ruleswhich apply to all programs to be licensed. (Exceptions to indi-vidual rules or parts of a rule can be built into the individualrules where needed.)

2. Special provisions modules which contain rules related to a spe-cific program category such as those mentioned above.

3. A fire safety section.

4. An environmental health section.

The “Residential Group Care Facility Rules” found in the Suggested StateLicensing Models, developed by the Child Welfare League of America un-der a contract from the Children’s Bureau of the U.S. Department of Healthand Human Services, is an example of such a set of rules.

Using one set of rules which govern several categories of programs hasadvantages over separate sets of rules for each type of program if theprograms have many commonalities. Using separate sets of rules for eachprogram operated by the same organization presents a problem with main-taining compliance with each set of rules if the rules are not consistentwith each other on organizational matters, case planning, policies, staffeducational requirements, etc. It is also more efficient to review or reviseone set of rules than to review or revise several sets of rules. Regulatingseveral types of service under one set of rules assumes that the types ofservice regulated have organizational commonalities and that additionalrules are developed for the specific characteristics of each program to beregulated.

Most states have an administrative procedures act which specifies thesteps to be followed in promulgating rules. It is important to review thislaw and be familiar with the legal requirements for promulgating rulesbefore beginning to revise or develop new rules.

Once it has been decided which programs will be governed by the rulesand that the anticipated scope of the new rules will be within the param-eters of the licensing law, other planning tasks can be completed. Theseinclude:

1. Developing a working plan and schedule for carrying out thevarious steps in the development process.

2. Deciding on the advisory committee structure and membership.

3. Developing the general format for the rules.

4. Selecting staff to assist in the process.

The development of a schedule for the rule writing process is important.The schedule should include the dates of the advisory committee meet-ings. The number of meetings of the advisory committee will depend largely


Select AdvisoryCommittee

on the amount of work to be done. For development of a completely newset of rules the committee will need to meet at least six times, while thenumber of meetings for revision of an existing set of rules may be fewer.

The development of a schedule with specific dates accomplishes severalthings. First, it provides a framework to measure progress. Second, settingthe dates of the meetings in advance allows members to plan their sched-ules. Third, it implants the idea that the task of the advisory committeewill be accomplished within a given period of time and that the advisorycommittee is time-limited.

Even with a well-planned schedule there is no guarantee that the workof the committee will be completed within the time allotted. Divergentviews among members and pressures from outside interests can slow theprocess. However, the fact that the process can be delayed only under-scores the need for a schedule, since it serves to minimize these factors.Generally several months are needed to carry out the process if there areno unexpected delays.

The general format and outline for the rules can be based on existingrules or a set from another state which is considered exemplary, or if thearea to be regulated is child welfare, the model state rules developed bythe Child Welfare League of America. Having such a base to work from isimportant as it provides a frame of reference for the advisory committeeand helps the committee to work with a sense of direction. If resourcesallow, securing the services of a communications or technical writing ex-pert to analyze the existing rules and make recommendations on style, or-ganization and format, is recommended.

Fundamental to rule development is the use of an ad hoc committee toadvise the state agency on the content of the rules. The work of the advi-sory committee generally is best accomplished by dividing the committeeinto two or more subcommittees depending on the size of the total group.Subcommittees then deal with specific sections of the rules, such as gen-eral provisions or core rules, program, administration, and fire and envi-ronmental health.

Generally membership of the advisory committee should include:

1. Representatives from organizations regulated by the rules. (Thisgroup should comprise the majority of the committee.)

2. Persons with special expertise in the regulated services.

3. Persons who use or have used the regulated services; such asparents of children in day care, children of parents in adult fos-ter care, former foster children, etc.

4. Representatives from the “public.” This can include personsfrom organizations such as the League of Women Voters.

5. Representatives of state agencies, such as education, fire andhealth officials, when their participation is used in the licensing


Select StaffFacilitators

process. (These persons often have a specific focus relative tothe rules, however, their expertise may be essential.)

Selection of the specific members of the advisory committee is the re-sponsibility of the state agency responsible for licensing. However, it isadvisable to invite organizations of providers to suggest their own repre-sentative. The invitation can outline the qualities which are important in acommittee member, such as the ability to represent the interests of the con-sumers as well as providers and a commitment to attend all meetings. Whenthe selection of individual committee members can be made, it is oftenpossible to select a person who fits more than one of the above listed char-acteristics. This can be useful in keeping the committee to a manageablesize. It may be appropriate to have a committee member from the samedepartment that the licensing unit is a part of, if that department also pro-vides services which are regulated by the rules to be promulgated. Thisdepartment staff person would not be from the licensing unit and wouldserve as an active member of the committee.

The size of the committee ideally should be 12 to 16 members. Efficiencytends to diminish for a committee larger than 16 and it is difficult to obtainsufficient representation when membership is less than 12.

Selecting the members of each subcommittee can be accomplished bycalling prospective members before the first meeting and asking them toserve on a particular subcommittee. If the person prefers to serve on a par-ticular subcommittee the request normally should be granted as interestgenerally improves the quality of participation. However, if there are notenough interested persons for a particular subcommittee it may be neces-sary to assign members to that subcommittee to maintain an appropriatebalance.

After the subcommittee structure has been decided the selection of li-censing staff to assist the advisory committee can be made. In addition tothe person who coordinates the overall rule making process, there shouldbe one licensing staff member for each subcommittee and they should bestaff who license the services to be regulated by the rules. It is important toselect licensing staff who are experienced in the licensing process and whoalso have a strong knowledge of the services to be regulated. In addition,the licensing staff need to be capable of writing clearly and succinctly, asthey will take the committee’s ideas and translate them into rule language.

Once the licensing staff have been selected and before the first meetingof the advisory committee, a meeting should be held with them to clarifytheir roles and the process to be used in working with the committee andsubcommittees. The staff should function as facilitators and resourcepersons to the committee and subcommittees, not as active committeemembers. They should take notes and record the concepts thesubcommittees present. The staff also should help the subcommittees un-derstand whether the concepts suggested for inclusion in the rules arewithin the parameters of the licensing law.


ConductCommittee

Meetings

Staff members play key roles as resources to their subcommittee. Thisincludes keeping the subcommittee task-focused and helping membersunderstand how a point under discussion would have an impact on pro-grams to be regulated. They must, however, be careful not to act as activemembers of the subcommittee. They should not vote in the subcommittee,or in the full committee meetings.

The site of meetings needs to be comfortable and large enough to allowfor the subcommittees to meet separately at the same time, as well as pro-vide room for the committee of the whole to meet. The preparation foreach committee meeting is most important to the success of the committeeprocess. Through careful attention to detail, the potential for negative feel-ings of committee members can be avoided. The preparation also needs toinclude appropriate materials and amenities such as coffee.

It is important to prepare the committee at the first meeting for the real-ity of their task and their role as advisors and facilitators. It is important tokeep in mind that the licensing agency has the responsibility for develop-ing the rules and must make sure that the rules do not unduly discriminateagainst or favor a particular type of program. Keeping these responsibili-ties in focus can prevent committee disappointment.

Committee members tend to measure their success in terms of the amountof impact they feel they have, rather than on the quality of their input.Thus it is important to keep the focus practical and on the licensing pro-cess. The committee members need to understand that the task is to de-velop licensing rules, not ideal standards. Invariably, some committee mem-bers will wish to include ideal standards and recommendations beyondbasic requirements. The staff can help prevent this by keeping the focus onthe mandatory aspects of rules. The rules need to be written with the as-sumption that noncompliance with any one of the rules could lead to li-cense denial or revocation. Thus, only significant basic content should beincluded.

Some states ask the advisory committee to develop recommended stan-dards in addition to licensing rules. This can serve a number of useful pur-poses, including making it clear to licensees that licensing rules are not ahandbook which defines everything necessary for the operation of a pro-gram. Recommended standards also can be useful consultative tools forlicensing staff. Where such standards are printed in relation to the rules isof considerable significance. Standards can be printed in a rear section ofthe rule booklet or in a separate booklet. Printing recommended standardswith the rules, where each page contains both rules and standards is notrecommended, as the likelihood that the distinction between what is to beenforced and what is recommended will be lost. There are some draw-backs to having the advisory committee develop recommended standards.First, it can lengthen the time it takes to write the rules. Second it can shiftsome individual priorities from the primary purpose of the committee,namely advising on licensing rules.


Develop RuleContent

The subcommittees should not attempt to write the actual rules butshould discuss and present concepts and basic principles which the rulesshould address. For example, a subcommittee might suggest that the par-ents of children in residential care be provided services to resolve the prob-lems which precipitated the need for substitute care. The licensing staffwould help the subcommittee assess whether a rule addressing this con-cept would be within the purview of the licensing law and if it is, wouldlater write specific proposed rules based upon this suggestion of the sub-committee. The actual writing of rules usually occurs between meetingsand is reviewed at the next meeting.

When staff make commitments to have certain materials or reports avail-able or mailed to committee members, it is important to carry out the com-mitment. As the committee sees the licensing agency staff follow throughas promised, the committee will trust that the product will benefit those tobe protected. In this climate the members are more likely to support thefinal product even if it does not include everything they would have in-cluded had they been given a free reign.

A major part of the first meeting should be orientation of the committeeas a whole. The orientation should include:

1. An informed speaker who can inspire the members relative tothe goal.

2. Clarification of the role and ground rules of the advisory com-mittee and the importance of their input and support for theend product.

3. A gentle reminder that the licensing agency is ultimately re-sponsible for the format and content of the rules.

4. Sharing of house-keeping tasks such as procedures for travelexpense reimbursement.

After the orientation is completed, the subcommittees are convened. Themajor portion of the first subcommittee meetings should focus on gettingacquainted and role clarification, with a brief time given to beginning thetask of the subcommittees.

The majority of the time during subsequent meetings should be devotedto the work of the subcommittees, with time at the end of each meetingused to present to the committee of the whole the issues the subcommit-tees have dealt with. This allows all the members to see the bigger pictureand present their ideas and concerns relative to all areas of the rules, whichalso helps to build a consensus.

The use of a rule drafting manual or handbook can be most helpful.Often such a manual or handbook is available from the branch of stategovernment responsible for reviewing the style and format of the rulesbefore they are promulgated. The federal government also has developedan excellent manual on this subject titled, “Legal Drafting Style Manual,”copies of which are available from the Children’s Bureau of the Depart-ment of Health and Human Services.


There are many tenets which the writers of rules need to keep in focus asthe rules are written, rewritten and polished into final form. The writers ofrules must assume that once the rules are implemented a license can bedenied or revoked for failure to comply with a single rule. While this maynot happen in actual practice, it must be assumed that it can happen, aslicensing staff do not have the luxury of “excusing” a licensee from meet-ing a rule. Because rules have the force of law, it is not legal for staff to“bend” a rule for any licensee. It is possible to waive or grant a variance toa rule under prescribed circumstances if the law or rules provide for doingso. However, if the rule writers believe that exceptions to certain rulesshould be made under certain circumstances, those rules should be writ-ten to allow for such exceptions.

As rules are developed it is important to keep another basic tenet inmind, namely avoidance of over-regulation. Excessive rules are as detri-mental to the goal of protection as is under-regulation. Over-regulationprevents needed services from being available by discouraging potentialproviders from entering the field, while under-regulation allows those whouse the services to go unprotected or to be exploited. Over-regulation isalso conducive to over-regimentation in programs and detracts from theprovision of appropriate services.

Rules need to be clear and precise and, where possible, they should bemeasurable; however, this sometimes is not possible in the literal sense(e.g., emotional stability, good character, or cleanliness). When it is notpossible to write a rule which is measurable, the rule still must be writtenso that the “reasonable person” can determine compliance or noncompli-ance.

When writing rules it is necessary to resist the tendency to includeeverything a licensee should do. Rules are not high quality standards orideals but are requirements below which providers are not allowed to op-erate. Rules do not lead the way to new levels of service quality but canraise the “floor” of acceptable services as the quality of regulated servicesadvance.

As noted earlier, licensing rules have the force of law. However, the rulesapply only to those who are required by law to be licensed. Thereforestatements or mandates directing licensing staff relative to their licensingfunction are not appropriate in licensing rules. This is not to suggest thatsuch mandates should not be shared with licensees. In fact, it can be help-ful to providers to have access to the policies and procedures which thelicensing staff must follow, but these polices and procedures are not rulesand should not be printed in the same booklet as the rules. Policies andprocedures that direct licensing staff are more appropriate in a licensingmanual.

Licensing rules always direct the applicant or licensee to do or refrainfrom doing something. They do not give directives to third parties. Forexample, a rule applying to adult residential facilities cannot require thatall vehicles on the premises have seat belts. A rule, however, can requirethe licensee to use only public transportation or vehicles equipped withseat belts for transporting residents and that where a vehicle is equippedwith seat belts that they be used. In other words, rules can prohibit or man-


date only matters over which the licensee has direct control. This distinc-tion may seem subtle at times, but can be critical in enforcing the rules.

In writing rules for child welfare services, agency accountability also isclearer if the terms child “care” and child “placement” are selectively used.Child placing agencies make placements, or place children into care andare thus responsible for those placement activities. Child care providers bycontrast only provide child care. It is important that the licensing languagereflect this distinction. Most states develop separate sets of rules for childplacing agencies and for child caring organizations, and apply both foragencies which provide both child placement and child care functions.When this is done, many of the rules dealing with the organization itselfcan be identical in both sets of rules, such as rules related to budgets, au-dits, qualifications for the director, etc.

Where possible, and practical, licensing rules need to be specific. Spe-cific rules usually contain numbers and is easily measured using commonlyaccepted measurement tools or scales. However, in the regulation of hu-man services having specific rules is not always possible or even desirable.For example, to write a rule which only lists unacceptable forms of disci-pline would result in failure to list all possible unacceptable forms of disci-pline and thus would create a loophole in the rule. A rule which states thatthe licensee shall have and follow a discipline policy, which emphasizespositive aspects of discipline with a subsection which prohibits generalpunishments such as “humiliation” and “corporal punishment” wouldserve to protect the residents. It also should specifically prohibit the morecommon types of severe discipline, but only following a more general state-ment on discipline. The following is such a rule:

R 400.4137 Discipline and behavior management.

Rule 137. (1) An institution shall establish and follow written polices and pro-cedures regarding discipline and behavior management.

(2) Upon request, the written polices regarding discipline and be-havior management shall be available to all residents, their fami-lies, and referring agencies.

(3) Staff shall receive a copy of the polices and procedures and shallcomply with them.

(4) The policy shall emphasize positive discipline and behavior man-agement as well as prohibit all cruel and severe discipline, in-cluding any of the following:

(a) Any type of severe physical discipline inflicted in anymanner.

(b) Verbal abuse, ridicule, and humiliation.

(c) Denial of any essential program services.

(d) Withholding of any meal.

(e) Denial of visits and communications with family.

(f) Denial of opportunity for at least 8 hours of sleep in a24-hour period.


(g) Denial of shelter, clothing, and essential personal needs.

(h) Excessive chemical, mechanical, and physical restraint.

General rules tend to be more difficult to measure than specific rulesand often the absence of documentation of rule noncompliance must betaken as the evidence of compliance. This raises an important related point.As a rule is being written, the question of how compliance with the rulewill be determined must be considered. If the conclusion is that it is notpossible to determine compliance, the rule will need to be rewritten or elimi-nated. Often licensing staff are in the best position to know whether thewording of a rule makes it possible for them to come to a definite conclu-sion of compliance or noncompliance.

Specific rules that can be readily quantified are in effect measures. Ruleswhich are more general and cannot be easily quantified often can be morevaluable when dealing with actual problems. Because general rules havebroader applicability they can be use to apply leverage, where specific rulesaddress only a particular aspect of an issue. “Lever” rules may be mostvaluable when problems arise. Such rules often deal with concepts such as“safe,” “clean” and “emotional health” and noncompliance is generallyapparent, but compliance is not easily quantified. “Lever” rules are moredifficult to apply under routine circumstances and require licensing staffwho are well trained in applying the rules consistently. The following is anexample of a “lever” rule:

R400.4113 Staff qualifications.

Rule 113. Each employee of the facility shall be of good moral character, emotion-ally stable, and of sufficient health, ability, experience, and education to performthe duties assigned.

Vague terms such as “adequate” and “proper” generally should beavoided in writing rules. Again, however, there are times when their usemay be necessary because more specificity cannot be given. An examplewould be a rule requiring that a licensee maintain adequate staff to carryout the treatment program specified in the licensee’s own program state-ment. Broad “lever” rules such as this usually do not stand by themselvesbut are combined with other more narrow and specific rules, such as staff-to-child ratios, and a minimum number of staff required to supervise anygroup. This combination makes it possible to enforce a basic floor whilealso enforcing based on individual circumstances, providing a safety netto be used when needed. As noted earlier “lever” rules require extra careon the part of licensing staff to gather and document findings to substanti-ate rule compliance and noncompliance. The following is such a rule:

R 400.4127 Staff-to-resident ratio.

Rule 127. (1) The licensee shall develop and adhere to a written staff-to-resi-dent ratio formula for direct care workers.


(2) The ratio formula for direct care workers shall correspond withthe institution’s purpose and the needs of the residents and shallprovide for the continual safety, protection, and direct care andsupervision of residents.

(3) The ratio formula used shall be at least 1 direct care worker forevery 10 residents or fraction thereof during normal awake hoursand at least 1 direct care worker for every 20 residents or frac-tion thereof during normal sleep hours.

The terms “assure” and “ensure” tend to be overused in rules. Rulesnormally mandate that a licensee do or refrain from doing something. Adirect statement is clearer than one which states that the licensee shall en-sure or assure something be done or not be done. It is helpful if near theend of the rule writing process someone highlights all imprecise terms suchas “proper,” “adequate,” “sufficient,” “suitable,” “appropriate,” “assure”and “insure,” for review by the ad hoc committee to determine whethermore precise or direct wording should be used.

Terms must be used consistently throughout a set of rules. Terms whichare ambiguous or are not used in accordance with their common dictio-nary meaning need to be defined in a definition or glossary section at thebeginning of the rules or at the beginning of the section in which they arefirst used. A term which requires definition but is only used once can bedefined in the rule where it is used. Terms which are defined in the licens-ing law must be used in keeping with their definition in the law. It is notnecessary to redefine terms used in the law as the law sets the parametersfor the rules including the terms defined in the law.

Unless absolutely necessary, the rules should not require compliance withother laws. Requiring compliance with another law can delay develop-ment of a program, e.g., requiring compliance with zoning laws. Whilezoning approval may be necessary, compliance with zoning is not intendedto protect the users of the licensed service and licensing should not be inthe position of being the enforcer of zoning. It is simpler to require that theapplicant notify the zoning authorities. This approach leaves the responsi-bility for enforcing zoning with that authority and does not allow zoningto delay licensing simply by not acting, knowing that licensing cannot pro-ceed. Similarly, in most states movement of children to or from other statesfor foster care or adoption requires Interstate Compact approval. A rulerequiring Interstate Compact approval binds the licensee and licensing toany delays which may be entirely the fault of Compact staff. A rule whichrequires that the licensee notify Compact before placing a child into or re-ceiving a child from another state is sufficient.

Licensing rules should be written so that each rule contains only onesubject, whenever possible. A rule may contain subparts, for example arule on records may list several items which must be contained in records,but such a rule would deal only with records. When a rule contains morethan one subject, e.g., record content plus the need to keep records confi-dential, then a violation could include only one aspect of the rule and en-forcement is more difficult.


As a general principle, if the licensee is expected to comply with specificcomponents of other laws, standards or rules, the specifics of those laws,standards or rules should be written into the licensing rule, rather than bereferenced. Again there are exceptions to this. For example, where includ-ing the specifics would be too lengthy and the organization which pro-duced it does not have a monitoring responsibility, then referencing thematerial is the only practical way to use the material. When referencing isdone, include in the rule the title of the material with the date it was pro-duced and how copies can be obtained. Without this specificity, if the origi-nating organization which developed the material changes the materialthey in effect revise the licensing rules independently and without dueprocess. When other material is referenced in rules the licensing agencyneeds to keep copies of the material. This is necessary because the refer-enced material may be updated by the organization which produced itand the actual material referenced in the rule may no longer be availablefrom the producing source. The following is an example of a rule whichrequires compliance with an other law:

R 400.4420 Food service facilities, equipment, and procedures.

Rule 420. Facilities, equipment, and procedures used in the preparation, storage,and service of food shall comply with the applicable provisions of sections 12901 to12922 of Act No. 368 of the Public Acts of 1989, as amended, being Sections333.12901 to 333.12922 of the Michigan Compiled Laws.

To get as much leverage as possible from the rules, the writers of rulessometimes reference other materials. Such references may be highly spe-cific or very sweeping such as: “The provider shall comply with all federal,state and local laws, ordinances and regulations.” References such as thisplace licensing staff in an untenable position.

1. It implies that the licensee and licensing staff must be aware ofthe specifics of all these areas.

2. It implies that licensing staff must enforce all the specifics in-volved.

3. It puts licensing staff in a legally vulnerable position if anotherjurisdiction fails to enforce what is its responsibility.

4. It implies that licensing staff are able to provide informationand materials on all the areas referenced.

5. It can allow other organizations to block development of ser-vices and immobilize licensing through inactivity or by insist-ing that licensing enforce every aspect of that organization’srequirements.

The above is not intended to indicate that referencing other material orauthorities is always inappropriate. It is possible to reference materials inways that do not put licensing staff in the position of being responsible forareas over which they have no control. For example, instead of requiringthat “a swimming pool shall meet all requirements of the local health au-thority,” when that protection is in fact needed, it is recommended that a


Test Rules

rule require that the licensee obtain approval of the local health authority.This provides the needed protection while also clarifying responsibility.

When a rule’s content is considered to be of special importance there is atendency to also mandate that the licensee document evidence of compli-ance with that rule. This is not necessary, as demonstrating compliancewith all rules is required by law. The use of such phrases in only some ofthe rules can be construed to mean that compliance with other rules is notrequired or is not as important.

When a proposed rule has significant cost or requires considerable timeto achieve compliance for current licensees it is a good idea to write in tothe rule a period of time for current licensees to achieve compliance withthe rule. This can help reduce resistance to the new rules by those whomust comply with them.

The draft of the rules will be reworked by staff many times to refinecontent and to obtain consistency of terms and language. As part of therewrite process, the goal of reducing the number and complexity of rulesneeds to be addressed as there is a tendency to develop voluminous rulesin an effort to address every possible issue and concern. The goal of eachsuccessive draft of the proposed rules should be to pare the rules down asmuch as possible without sacrificing basic protection and basic quality. Ahelpful exercise is to carefully review the rules to see if any sentence, phrase,or individual word can be eliminated without changing the meaning. Nearthe end of the committee process it is helpful to review all the draft rules todetermine whether any of the rules can safely be deleted.

Because licensing staff are generally well informed on services and li-censing, it is advisable that licensing staff who are not directly involvedwith the committee also be given the opportunity to review the draft rule.It is suggested that this review be done in small groups to allow for groupinteraction to bring out ideas that may not come out through individualstaff review. The staff should look for rules which are redundant and howthey would determine compliance with each rule. This process helps thestaff focus on the rules and uncover most of the potential problems newrules can present. The group then should present their findings and rec-ommendation for further refinement of the rules.

After the draft of the rules is completed and has been sent to the ad hoccommittee members, the committee of the whole should meet one finaltime. The focus of this meeting will be on the concerns the committee haswith the draft rules. It is important to explain fully the reason for not in-cluding any recommendations of the committee which the agency doesnot accept. The draft rules then are reworked, where appropriate, to ad-dress the committee’s final thinking and then test and present for review atpublic hearings.

Before the rules are promulgated, it is most helpful to test the rules byhaving several licensing staff apply the proposed rules with agencies as a“pilot” test. Agencies, particularly those represented on the advisory com


Secure OtherReviews

ConductHearings

mittee, usually are willing to volunteer for such “licensing studies.” Thisprocess is important in that it tests the rules for measurability and consis-tency and usually uncovers flaws in the rules while they still can be easilychanged. The experience gained from this process is then used on the finalrewrite, along with input from public hearings and written comments.

As part of the promulgation process the proposed rules should be pre-sented for review and comment to those who will be affected by the rules.This can best be accomplished by sending copies of the proposed rules toall licensees and inviting their comments and concerns at public hearingsand by requesting the submission of their written comments.

The public hearing should be opened with a clarification that the hear-ing is an opportunity for interested persons to comment on the proposedrules and that the licensing agency is not there to debate the merits or det-riments of the proposed rules. (See appendix III for a sample statement.) Itmay be necessary for the person in charge to clarify the meaning of a pro-posed rule or other licensing-related issue to correct misunderstandings,but the merits of any proposed rule or comment should not be discussed.Comments are taken under advisement, not resolved during the hearing.

Each public hearing should be recorded in a verbatim transcript. Thecomments on the rules, both written and those made at hearings, can thenbe condensed to a summary of the essence of each comment. Once thecomments have been summarized they can be organized by rule. This sum-mary is then used to review each rule and make appropriate changes. Aneffective way to accomplish this rewrite is to have the staff who work withthe ad hoc committee review each summarized comment and decidewhether the comment addresses a concept which should be addressed inthe rules and if so whether the rule it addresses should be changed. Wherea suggestion is not accepted the reason for not accepting it should be re-corded. By doing this, each person’s input is specifically addressed. Also,this method reduces the likelihood that biases will influence the rewrite.The written record of comments with the licensing agency’s response servesas an historical perspective on the rationale for the rules when questionsarise as to interpretation. After this revision of the proposed rules, the adhoc committee should meet one more time to review the changes.

Most states’ Administrative Procedures Laws require that proposed rulesbe reviewed and approved by the Attorney General’s Office and by a legis-lative committee before the rules can be officially adopted. The AttorneyGeneral’s office typically reviews the proposed rules to determine whetherthey are within the scope of the licensing act and that they are not in con-flict with other laws of the state. Even if state law does not require a reviewby the Attorney General’s office it is generally a sound practice to havethat office or the agencies’ own legal counsel review the proposed rules tohelp point out potential legal problems with the rules, which can be ad-dressed before they are officially adopted.


Implement

Conclusion

The required review by the legislative branch of government has comeunder attack of late and has been found to be unconstitutional in somestates as violating the separation of powers between the administrativeand legislative branches of government. Where legislative approval is re-quired the support of those involved in the ad hoc committee can be mosthelpful in gaining legislative support.

Some states require a fiscal impact statement to assess the fiscal implica-tions of the rules both on the licensing agency and those who must complywith the rules. While a fiscal impact statement may be needed as one of thefinal steps in promulgation of the rules it is an important consideration tokeep in mind throughout the rule-writing process.

Once the rules are “fine-tuned” to final form, it is suggested that they bepromulgated with an effective date at least three months in advance. Thiswill give the licensing agency time to train licensing staff relative to therules and to hold training sessions with the organizations which will belicensed under the new rules to help them understand how they can com-ply with the rules. If the new rules are considered controversial, havingmembers of the rule revision committee assist in training other licenseesmay defuse some of the tension.

The last step in the promulgation process, after the rules have become apart of the state’s administrative rules, is the printing and dissemination ofthe booklet containing the rules. Various arrangements are used by statesin terms of content and format. It is recommended that in addition to therules, the booklet include a foreword which contains a statement of phi-losophy. If licensing policies and recommended standards are included inthe booklet, they need to be separate from the rules and located at the endof the booklet.

It also is advisable to include a brief description of the process used indeveloping the rules and to print the names of the ad hoc committee mem-bers in the booklet. This gives recognition to the persons who served onthe committee and provides applicants and licensees with evidence thatthe rules were developed by their peers and by other persons who are well-informed in their field. To those who must comply with the rules the de-gree to which the rules are “official” can impact their acceptance of therules. Generally licensees and applicants are not aware of the formal pro-cedures used in the process of developing rules. For many, this informa-tion is a significant incentive for taking the rules seriously. (See AppendixIV for an example.)

Because licensing rules are the stock-in-trade of those who carry out thelicensing function and are the guardians of the rights of children, their fami-lies and vulnerable adults, the rules must be developed with the utmostcare and planning to “fit” the services to be regulated, using appropriateadvisors. The development process and the rules themselves must respect


the “due process” rights of those who provide the regulated services. It isonly by hard work and commitment to a high quality product that soundand appropriate rules for human service programs are developed.


Statement ofPhilosophy forLicensingChildren’sServices

Appendix I

1. Because the future of any society depends on the healthy physical, men-tal and emotional growth and development of children, the state hasan interest in the well-being of children.

2. Because of the family’s value to the child, the state has an obligation tobe supportive of families in the performance of their child-rearing roleand to strengthen family life, even when children must temporarilylive away from their parents.

3. Placement of children and care that they receive outside their homes isgiven for the purpose of supplementing or temporarily substitutingfor the care and protection that children should receive from their par-ents and to enhance the child’s growth and development. Non-paren-tal child care should promote the physical, emotional, intellectual andsocial growth of the child while supporting the child’s family and shouldbe appropriate for the level of development and individual needs ofthe child, including identified special needs.

4. The state is responsible for maintaining adequate licensing requirementsand for enforcing them to protect the health, safety, well-being andbasic nurturing needs as well as special individual needs of childrenreceiving care outside of their own homes. Licensing serves the con-sumers of child care services who may have neither the access not theexpertise to determine quality and safety and who, therefore, must relyon the competence and authority of the state for protection.

5. Fairness requires that placement and out-of-home child care be regu-lated in a consistent and organized manner. Requirements for compli-ance are intended to be clear so that they can be understood bycaregivers, operators, parents and regulators. The training of licensingstaff in the services licensed and in the licensing process is basic to im-proving the consistent and predictable enforcement of the rules.

6. The regulation of out-of-home child care is designed to protect the dueprocess rights of those who are providing the care with respect to theenforcement of the rules, prompt resolution of disputes, and reason-able sanction for rule noncompliances as well as protecting the rightsof persons receiving services.

7. The rules for out-of-home child care reflect the right of parents to havefull knowledge about the care given to their children and recognize therole parents can play in supporting the licensing process by their over-sight of the care of their children.

8. Licensing rules are not intended to be so stringent that they impede thedevelopment of acceptable services for children. The state offers con-sultations to current and prospective providers of regulated services tohelp meet the rules.


9. Services for children vary in characteristics and quality as a function ofthe goal and objectives of the program and the personnel providingthe care. However, the regulation of the services is based on the factthat children have common needs for a safe and healthy environment,adequate facilities and equipment, and a defined program with com-petent caregivers.


Areas Coveredin LicensingLaws

Appendix II

The areas generally covered in licensing laws:

title

preamble

designation of services to be regulated

definitions of services to be regulated

designation of subject to be addressed by rules

rule making authority

provision for monitoring licensees

prohibition against operation without a license

application for licensure

investigating authority

characteristics and conditions of licenses, including duration,and temporary and provisional status of licenses

degree of compliance required (e.g., “substantial”)

provision for rule waiver

denial or revocation of licenses

authority for providing consultation

record keeping

provision for licensing all public agencies including court- ad-ministered services which provide the same services asprivate agencies

enforcement procedures

penalties

injunctions

appeal procedures

relationship to other state agencies

authority to temporarily suspend licenses for hazardous opera-tions, without prior administrative hearing


Appendix III

Public HearingOpeningStatement

This hearing is being conducted by the ( ) Department, on proposedrules for (title of rules). This public hearing is an opportunity for the de-partment to hear and receive comments regarding these proposed rules.No final action on adoption of a rule or rejection of a rule will be made atthis hearing. However, the comments will be recorded and a transcriptmade, to enable the department to give careful consideration to each com-ment. The comments may result in a revision of the proposed rules, ifdeemed desirable or necessary.

When the proposed administrative rules are in final form, the followingsteps in processing the rules are required:

1. The rules are submitted to the Legislative Services Bureau forreview and certification as to format.

2. The rules are submitted to the Attorney General for review andcertification as to legal effect.

3. The rules are submitted to the Joint Legislative Committee onAdministrative Rules for review and approval.

4. A copy of the rules is submitted to the Governor’s office.

5. The rules are filed with the Secretary of State, and become partof the state’s administrative code, having then, the force of law.

The authority to developed and promulgate these rules is conferred uponthe (name) Department by the following (State’s name) statute: Act No.(#)of the Public Acts of (year), being Section (#) of the (State’s name) Com-piled Laws.

As directed by law, public notice of this hearing and the other (#) hear-ings held around the state were published in the month of ( ), in thefollowing newspapers:( ). Over (#) copies of the Notice of Public Hearingand copies of the proposed rules have been mailed to all (type of program(s)regulated by the rules) and to persons and officials who have expressed aninterest and anyone known to the Department to be interested in theserules.


The ProcessUsed inDevelopingThese Rules

Appendix IV

This is an example of the statement which can be included in the booklet con-taining the rules. This statement provides information about the process used indeveloping the rules. Statements such as this help those who must comply withthe rules understand that the rules were developed with input from persons whoare required to meet the rules themselves.

The process of developing these rules may be of interest to persons af-fected by the rules. The committee members listed below were selected onthe basis of their knowledge about (type of service) and their being repre-sentative of large numbers of persons associated with (type of service).

The committee met (#) times during an (#) month period. They showeddraft rules to other interested persons and brought their recommendationsback to the committee. When the committee completed advising on thepreliminary draft, (#) public hearings were held around the state for thepurpose of receiving comments on the proposed rules. The committee metagain to consider and advise the department relative to the recommenda-tions made during the hearings. Following the hearings the rules werereviewed and modified by the Legislative Services Bureau as to format,submitted to the Attorney General for review and certification as to legalacceptability especially as it relates to Public Act (#) the (state) licensinglaw, approved by the Joint Legislative Committee on Administrative Rules,and filed with the Secretary of State where they were made part of thestate’s administrative code, thus having the force of law.

(Include a list of the names of the ad hoc committee members along with theirtitles and who they represent.)


Suggested Reading List

Child Welfare League of America: Guidelines for Operating a State LicensingProgram for Placement and Care of Children, 1983

Child Welfare League of America: Suggested State Licensing Models for Place-ment and Care of Children, 1983

Class, Norris E. Licensing of Child Care Facilities by State Welfare Departments,United States Dept. of Health, Education and Welfare, Office of Child De-velopment, Children’s Bureau, 1968

Huges, Edna, Dwight H. Freguson and Martin Gula. Licensing: A Dynamicfor Change. New York: Child Welfare League of America, 1962

Terpstra, Jake. “Licensing of Children’s Services,” Licensing of Services forChildren and Adults: A Compendium of Papers, School of Social Work, Vir-ginia Commonwealth University, 1985

Terpstra, Jake. “Coming to Terms with Terms in Licensing,” Licensing ofServices for Children and Adults: A Compendium of Papers, School of SocialWork, Virginia Commonwealth University, 1985

Terpstra, Jake. “Accreditation and Licensing,” Caring, vol. 11 #1 (Winter1986)

Tropman, John E., Harold R. Johnson and Elmer J. Tropman. The Essentialsof Committee Management. Chicago: Nelson-Hall, 1979

handbook for writing licensing rules for human...

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